---

TION OF GROUNDS OF REVIEW-OBJECTION
TO INSTRUCTION.

On appeal, only the objection to an instruction made below will be considered.

4. MASTER AND SERVANT 236(2)-HAZARDS OF EMPLOYMENT-ASSURANCE OF SAFETY.

of the employment, and the servant has the right A master is presumed to know the hazards to rely on the master's assurance of safety, unless the danger is so open and obvious that its existence is both known to and appreciated by the servant.

ested with the landlord in providing facili- [ 3. APPEAL AND ERROR 232(3) — RESERVAties for gathering the crop and preparing it for market, and they are in a class to themselves, so that a gin operated for the benefit of the landowner himself and his tenants and share croppers does not come within the general definition of a "public gin" as used in the statute. The protection of this class of patrons of a gin may be as appropriate as that extended by the provisions of this statute to the general public, but the lawmakers have not seen fit to regulate all gins, and only those gins that are operated for the benefit of the public come within the terms of the statute. The province of the courts is ⚫ to construe the law and not to make the law. The case of Cawker v. Meyer, 147 Wis. 320, 133 N. W. 157, 37 L. R. A. (N. S.) 510, seems to be a leading one on this subject. There was involved in that case the construction of a statute regulating certain public utilities, and the court said:

"The word 'public' must be construed to mean more than a limited class defined by the relation of landlord and tenant, or by nearness of location, as neighbors, or more than a few who, by reason of any peculiar relation to the owner of the plant, can be served by him."

We need not in the present case give any broader definition of the term than to say that the facts of this case, as set forth in the complaint, do not bring the business of appellees within the terms of the statute. Therefore we limit the decision to the particular facts set forth, and hold that the operation of a cotton gin by a farmer in connection with his own farm for the purpose of ginning his own cotton and that of his tenants, share croppers, and others who produce crops on the farm is not a public ginner within the meaning of the statute, and that a gin so operated is not subjected by the statute to regulation. Decree affirmed.

(134 Ark. 136)

CHESS & WYMOND CO. v. WALLIS. (No. 332.)

(Supreme Court of Arkansas. April 29, 1918.) 1. MASTER AND SERVANT 289(4)-INJURIES TO SERVANT-QUESTION FOR JURY.

In a stave bolt cutter's action for injuries when a limb fell from a tree and struck him, whether plaintiff, a young man, though not an inexperienced timber man, had the right to rely on his foreman's assurance of the safety of the place to which he was assigned to work held for the jury.

2. TRIAL 296(4, 5)-INSTRUCTION-CURE OF ERROR BY OTHER INSTRUCTIONS.

In such action, the instruction that if defendant, by its authorized agent, ordered plaintiff into a place of danger, and plaintiff, by reason of youth and inexperience, did not appreciate the danger, and defendant knew it, or should have known it, it was defendant's duty to warn him of the danger, etc., was not erroneous, when read in connection with the other instructions, though not happily framed to present the exact issue whether plaintiff had a right to rely on his foreman's assurance of safety.

5. TRIAL 125(4)-ARGUMENT OF COUNSEL

IMPROPRIETY.

In a servant's action for injuries, his counsel's statement in closing argument that his client was very poor, and that he (counsel) had spent at least $300 of his own money in prosebeen forced to pay out costs himself, and had cuting the suit, was improper.

6. TRIAL 133(6)-CURE OF ERROR-IMPROPRIETY IN ARGUMENT.

Where the court sustained objection to such argument and admonished the jury to disregard it, the error was cured.

7. TRIAL 125(4)-ARGUMENT OF COUNSELIMPROPRIETY.

The statement of plaintiff's counsel in argument that defendant was a large. corporation and worth lots of money, and would not pay even a 10 cent judgment, but would appeal to the Supreme Court, and keep the case in 8. APPEAL AND ERROR 1060(4)-HARMLESS court as long as possible, was improper.

ERROR-IMPROPER ARGUMENT.

Such argument was harmless to defendant, when no complaint was or could have been made against the verdict as excessive, the argument not having been calculated to induce the jury to make a finding of liability which would not otherwise have been made.

9. TRIAL 344-QUOTIENT VERDICT — IM-
PEACHMENT BY JUROR.

the testimony of a juror.
A quotient verdict cannot be impeached by

Appeal from Circuit Court, Boone County;
Jno. I. Worthington, Judge.

Suit by Cleat Wallis, by next friend, against the Chess & Wymond Company. From judgment for plaintiff, defendant appeals. Affirmed.

Brundidge & Neelly, of Searcy, for appellant. E. G. Mitchell, of Harrison, for appellee.

SMITH, J. On May 27, 1914, while appellee was engaged in cutting stave bolts for the appellant company, he was injured by a limb falling from a tree, which struck him He sustained a very serious on the head. injury, and brought this suit, through his father as next friend, to recover damages to compensate the injury. On appellee's behalf directed by his foreman, a man named Northe testimony was to the effect that he was man, to saw a log lying under the hanging limb, when appellee called attention to the limb, but was assured by Norman that there was no danger of the limb falling. Appellee commenced the task to which he was assigned, and while so employed the limb fell upon him. Norman denied having seen the limb or having given any assurance as to the absence of danger. Appellee was nearly grown

at the time of his injury and had had several, ence is both known to and appreciated by the years experience working in timber, notwith- servant. The rule is stated in 4 Labatt on standing his youth, but he testified that he Master and Servant (2d Ed.), page 3965, as relied upon the assurance of Norman that the follows: limb would not fall, and that it was only because of this assurance that he commenced working under the limb.

Over appellant's objection the court gave the following instruction:

"(1) If the defendant, by its authorized agent, ordered plaintiff into a place of danger, to aid in cutting up a tree,' and plaintiff by reason of youth and inexperience did not know of and appreciate the danger of the situation and defendant knew this, or ought in the exercise of ordinary care on its part to have known it, then it was the defendant's duty to warn him of this danger, so that, as far as might be by proper care on its part, plaintiff could perform his duty in safety to himself; if the defendant failed in this respect, and plaintiff, while exercising due care for his own safety, by such failure, suffered the injuries sued for, then plaintiff should recover in this action."

[1-3] To the giving of this instruction appellant at the time objected generally, and further objected specifically for the reason that under the law and the evidence as testified to by appellee himself the company did not owe to him any duty of warning as to his own safety, because his experience in such employment showed there was no necessity for warning him. In passing upon the objection made to this instruction it is

"But it has been held that the assurance of safety given by the master may be of such a character as to take away all question of assumption of risk, even if the risk is known to the servant. The same effect is reached in a number of cases which hold that the servant may recover if he is injured while relying upon an assurance of safety, unless the danger was so great and imminent that a reasonably prudent man would not have incurred it."

We cannot say that the jury did not have the right to take into account appellee's age and experience as contrasted with that of his foreman, and to find therefrom that appellee had the right to rely upon the assurance given, and that he was not guilty of contributory negligence, and did not assume the risk. McLeod v. Des Arc Oil Mill Co., 199 S. W. 932.

[5, 6] Exceptions were saved to two portions of the argument of counsel for appellee before the jury. In his closing argument counsel made the following statement:

"Gentlemen of the jury, my client Cleat Wallis is a very poor man, and I have been having to pay out costs in this case myself, and prosecuting this suit." I have spent at least $300 of my own money in

It is recited in the bill of exceptions that

proper to say that the court gave at appel- this statement was made in response to cerlant's request a number of instructions, de- tain statements of counsel for appellant; claring the law as contended for by it; in but the objection made to the argument was fact, the court gave all the instructions re- sustained, and the court admonished. the juquested by appellant. And while it is true ry to disregard it. The statement of counthat appellee was not an inexperienced tim-sel was, of course, an improper one, but we ber man, he was still a young man, and we think under the circumstances that it was think the record presents a question of fact not so prejudicial as not to have been cured which should have been submitted to the by the admonition of the court concerning it. jury, and that is, whether appellee had the [7, 8] Again in his argument counsel for right to rely on Norman's assurance of the appellee stated: safety of the place to which he was assigned to work. The instruction is not happily framed to present the exact issue in the case, but we think it was not erroneous when read in the light of and in connection with the other instructions. No objection was made to the instruction other than the one just indicated; therefore none other will be considered now. The warning of which the instruction speaks may not have enabled appellee to perform his work any more safely, but appellee says the assurance of safety induced him to take the place assigned to him.

"Gentlemen of the jury, the defendant. Chess & Wymond Company, is a large corporation and worth lots of money, and if you are to give us a judgment, they would not pay it off if it were only ten cents, but would appeal to the Supreme Court of the state and keep it in court as long as possible."

But

Objection was also made to this argument, and the court was requested to exclude it and admonish the jury to disregard it. the court declined to rebuke counsel or to exclude the argument from the jury. It is apparent that this argument, too, was an improper one, but the majority of the court are of the opinion that its only effect was to [4] It is argued that the danger was open urge the jury to return a larger verdict and obvious, and that Norman could not have than would otherwise have been done, and had any more knowledge of the danger than that it was not an argument calculated to inappellee himself had, for according to ap-duce the jury to make a finding of liability pellee's testimony the presence of the suspended limb was known alike to both himself and Norman. But it is just here that we think the jury question arises. The master is presumed to know the hazards of the employment, and the servant has the right to rely on the assurance of safety, unless the danger is so open and obvious that its exist

which would not otherwise have been made, and that, inasmuch as no complaint has been made or can be made against the verdict as having been returned for an excessive amount, it therefore affirmatively appears that no prejudice resulted from the argument. St. L., I. M. & S. R. Co. v. Brown, 100 Ark. 107, 140 S. W. 279.

district sued in chancery to recover what it owed him, making bank a garnishee, equity being proper forum, and bank, by answer and cross-complaint, asked that summons be issued and served on the district on the cross-complaint, which was done, and the district filed demurrer to the answer and the cross-complaint of the bank, raising the issue of the amount owed by the bank, so that the chancellor's decision in the equity or garnishment case was an adjudication of the amount the bank owed the drainage district such decision, unappealed from, was res judicata in the action by the treasurer of the district against the bank, which was not tried until after determination of the garnishment suit; trial having been postponed on the bank's motion.

[9] It is finally insisted that the verdict | bank belonging to district, but contractor with in the case was arrived at by lot. And as tending to support that contention, the testimony of a juror was heard, from which it appears that the verdict was not arrived at by lot, but was a quotient verdict, which had been arrived at by adding together the amounts for which the different jurors thought the verdict should be and of dividing that sum by 12. In the case of Speer v. State, 198 S. W. 113, we expressly held that a verdict arrived at in this manner was a quotient verdict, and not one determined by lot, and that such a verdict could not, therefore, be impeached by the jury. It is true the Speer Case, supra, was a criminal case while the instant case is a civil case; but the right of a juror thus to impeach his verdict was raised in the case of Ward v. Blackwood, 48 Ark. 408, 3 S. W. 624, which was also a civil case. There the affidavit of the juror would have shown that the verdict was arrived at by lot; but the court held the testimony of the juror, showing that fact to be inadmissible for that purpose, and in doing so Judge Battle, speaking for the court, said:

"In Pleasants v. Heard, 15 Ark. 407, the affidavit of Strawn, one of the jurors, was filed to show that the jury agreed that each member thereof should write down the amount that he was in favor of, and that these several amounts should be added up and their sum divided by 12, the number of the jurors, and that the quotient should be taken and written as the amount of their verdict, which was accordingly done, and the verdict so arrived at was returned into court as the verdict of the jury. Chief Justice English, in delivering the opinion of the court, said: "Though there are some conflicting cases, we think it may be safely decided, upon authority, and for many good reasons, that the affidavit of the juror Strawn was not admissible in this case to impeach the verdict rendered by him for the cause stated in the affidavit.' Thompson & Merriam on Jury Trials, § 414. *** The rule laid down in Pleasant v. Heard has not been changed or repealed in civil cases, but, on the contrary, in such cases remains in full force."

Judgment affirmed.

(134 Ark. 109)

Appeal from

Circuit
Circuit Court, Randolph
County; J. B. Baker, Judge.

Suit by J. O. Sallee, as Treasurer, of Run-
ning Lake Drainage District, against Ferd
Spinnenweber and the Bank of Corning.
From judgment for the bank, plaintiff ap-

peals. Affirmed.

On July 8, 1915, J. O. Sallee, as treasurer of Running Lake drainage district, sued Ferd Spinnenweber and the Bank of Corning to recover a sum of money alleged to be in the hands of the bank which belonged to the drainage district. The complaint alleged that Ferd Spinnenweber had been treasurer of the drainage district and had been succeeded in office by J. O. Sallee; that Spinnenweber at the expiration of his term of office had in his hands the sum of $26,775.81, which he had deposited in the Bank of Corning; that he gave to Sallee a check upon the Bank of Corning fór said sum; that the check was duly presented to the bank and payment thereof refused. The circuit court sustained a demurrer to the complaint, and, the plaintiff electing to stand on his demurrer, judgment was rendered against him in favor of the defendants. The plaintiff appealed to this court, which reversed the judgment of the circuit court. The court held that the treasurer of the drainage district had a right to maintain an action against any person or corporation improperly withholding the money of the district from him. The court also held that the complaint

SALLEE, Treasurer, etc., v. BANK OF CORN- in effect alleged that Spinnenweber had de

ING et al. (No. 329.)

(Supreme Court of Arkansas. April 29, 1918.) 1. GARNISHMENT 17-DIRECTORS OF DRAINAGE DISTRICT.

The board of directors of a drainage district, being an agency of the government created for public purposes, on the ground of public policy, was not subject to garnishment at law. 2. APPEAL AND ERROR 918(1) - PRESUMPTION AMENDMENT PURSUANT TO LEAVE. The presumption in the absence of showing to the contrary, is that a garnishee amended its pleading pursuant to leave given by the court, and that proof was taken on the issue.

posited the funds of the district in the Bank of Corning and that the funds were wrongfully withheld by the bank from the custody of Sallee, as treasurer. It was ordered that the cause be remanded for further proceedSallee v. Bank of ings according to law.

Corning, 122 Ark. 502, 184 S. W. 44.

Upon a remand of the case, at the July, 1916, term, of the circuit court, the Bank of Corning filed a separate answer to the complaint, substantially as follows: It admitted that Spinnenweber had been treasurer of the district and at the expiration of his term of office there was on deposit at Where treasurer of drainage district sued former treasurer, and bank in which latter had the Bank of Corning the sum of $26,775.81. deposited moneys of district, to recover sum in It is admitted that the bank had refused to

3. JUDGMENT 645-RES JUDICATA-DECISION IN GARNISHMENT SUIT.

It

pay the check drawn on it by Spinnenweber The motion of the Bank of Corning to transin favor of Sallee, as treasurer of the drain- fer the case to the chancery court was overage district, for this amount, and as a rea- ruled. The bank presented its motion to son therefor alleged that the check was have the trial of this cause postponed until drawn in violation of a contract entered in- after the determination of the suit in the to between the district and the bank at the chancery court. This motion was granted. time the funds were deposited. It alleged To sustain its plea of res adjudicata, the bank that Spinnenweber deposited the funds in the introduced in evidence all the proceedings bank by order of the board of directors of in the chancery suit. the drainage district under a contract which provided that the funds were to remain in the bank until they were needed to be paid out for the work of the construction of the improvement. W. R. Brown entered into a contract with the district to construct the improvement for $85,000. The district was unable to sell its bonds at par, and Brown was unable to continue the contract unless money was furnished him for that purpose. The Bank of Corning had already made advances to Brown, to be used in performing his contract. Brown, after consulting with the Bank of Corning, agreed to purchase the bonds of the district at par and continue his work in constructing the improvements, if the funds from the sale of the bonds should be deposited in the Bank of Corning and should not be drawn out, except in pay-trict was indebted to Brown in a sum largely ment for work performed by Brown under his contract. Under this agreement the bank was to pay 1 per cent. interest on daily balances due the district. The district was a party to this agreement, and the bank executed to Spinnenweber a bond, for the use of the district, to protect it against loss on account of the deposit. The bank has at all times been ready and willing to pay all warrants drawn on it by the drainage district for the construction of the improvement. It has paid all the warrants drawn on it by the district. Since the beginning of this suit it has paid out more than $20,000 on the orders of the district. There is on deposit in the bank only $8,791.01. Brown has completed his work under his contract with the drainage district, and there is not sufficient funds left in the bank to pay him for his work. The bank, also, filed a plea of res judicata.

Subsequently to the institution of this suit in the circuit court, Brown brought suit in the chancery court against the drainage district to recover the amount due him and had a writ of garnishment issued against the Bank of Corning. The writ of garnishment was returnable on September 4, 1916. Brown asked that the Bank of Corning be compelled to answer in the chancery court the amount of funds in its possession belonging to the district and be required to pay the same according to the orders of the chancery

The prayer of the complaint in the present action was that the cause be transferred to the chancery court and consolidated with the suit brought by Brown against the district there and that the rights of the respective parties be determined in equity.

In the equity suit of Brown against the drainage district, in which the bank was garnished, the bank filed what it termed an answer and cross-complaint. It admitted that it owed the drainage district $8,790.01, with 1 per cent. interest thereon from the 23d day of June, 1916, and stated that said sum was on deposit in the bank to the credit of the treasurer of the drainage district. It denied that it was indebted to the district or had in its possession any other property or money belonging to said district. It set forth at length the contract and circumstances accompanying the deposit of the money in the bank, substantially as stated above. further stated that Brown had completed his contract with the drainage district for the construction of the drains and that the disIt in excess of the amount on deposit. stated that the funds were deposited in the bank under a contract between the bank, the district, and Brown, and that it was ready and willing to pay to Brown whatever amount the court might find to be due him. The prayer was that the answer be considered as a cross-complaint against the drainage district and that the court determine the amount of funds owed by the bank to the drainage district and direct the payment thereof to the proper person. It asked that summons be issued and served upon the filed and summons issued on August 9, 1916. bank. The answer and cross-complaint was The return on the summons shows that it The return on the summons shows that it was duly served by the sheriff on the direc

tors of the drainage district on the 12th day of August, 1916.

the answer and cross-complaint of the bank, The drainage district filed a demurrer to which was sustained, and the bank was given 30 days within which to amend its answer and cross-complaint. The decree recites that the cause was heard upon the complaint and the amendments thereto, upon the answer and cross-complaint of the defendants, and upon the allegations and interrogatories filed against the garnishee, the Bank of Corning, the answer to the interrogatories and cross-complaint of the Bank of Corning, and upon the depositions of certain named witnesses.

The court found that Brown was entitled to recover of the defendant the sum of $11,902.67, with interest thereon at the rate of 6 per cent. per annum from the 16th day of June, 1916. The court further found, from the answer filed by the Bank of Corning and from the testimony introduced, that there

for are firmly established. We do not think, however, the rule contended for is applicable to the facts of the present case and the issue raised by the pleadings. It is true the court had jurisdiction of the persons and of the subject-matter in the present suit, which was instituted first, and that ordinarily the rule of priority in assuming jurisdiction would govern. Subsequently, however, Brown instituted a suit in chancery against the drainage district to recover what it owed him, and the bank was made a garnishee in that suit. Equity was the proper forum in which to bring that action. The board of directors of the drainage district was an agency of the government created for public purposes, and on the ground of public policy was not subject to garnishment at law. Plummer v. School District No. 1 of Marianna, 90 Ark. 236, 118 S. W. 1011, 134 Am. St. Rep. 28, 17 Ann. Cas. 508; Goyer Co. v. Williamson, 107 Ark. 189, 154 S. W. 525.

was on deposit in the Bank of Corning, sub-1 reason that the principles of law contended ject to be applied to the payment of the judgment in favor of Brown, the sum of $8,790.01, with 1 per cent. interest thereon from the 23d day of June, 1916; that the funds of the drainage district derived from the sale of its bonds were deposited in the Bank of Corning upon a contract that the bank should pay 1 per cent. interest on daily balances; that there was due from the bank to the drainage district the sum of $8,852.25. The court found for Brown against the defendant drainage district for the sum of $12,420.42. It was decreed by the court that Brown have and recover from the drainage district the sum of $12,420.42 and all costs; that the Bank of Corning, the garnishee, be ordered and directed to pay to Brown the sum of $8,852.25; that upon payment of said sum to Brown the bank be discharged from all liabilities on account of every claim of every kind by the drainage district or its treasurer. The court was of the opinion that the bank's plea of res adjudicata should be sustained and judgment rendered for the defendant.

Judgment was accordingly rendered in favor of the defendant bank, and the plaintiff has appealed.

T. W. Campbell, of Little Rock, and W. L. Pope, of Pocahontas, for appellant. C. H. Henderson, of Pocahontas, and G. B. Oliver, of Corning, for appellee.

Of course under the authorities above cited, the drainage district would not ordinarily have been concluded by the adjudication in the garnishment proceedings of the amount due by the bank. The bank, however, by its answer and cross-complaint, made that an and served on the district on its cross-comissue, and asked that a summons be issued plaint. This was done. The district filed a demurrer to the answer and the cross-complaint of the bank raising this issue. The demurrer was sustained by the court, but the bank was given 30 days in which to amend its answer and cross-complaint. It is true the record does not affirmatively show whethbank. But the record does affirmatively show er or not this amendment was made by the that the case was heard upon the complaint and amended complaint of the plaintiff, the answer and cross-complaint of the defendant, and upon the allegations and interrogatoCorning, the answer to the interrogatories ries filed against the garnishee, the Bank of and cross-complaint of the Bank of Corning, and upon the depositions of certain named witnesses.

HART, J. (after stating the facts as above). [1-3] It is earnestly insisted by counsel for the plaintiff that the court erred in sustaining the defendant's plea of res adjudicata. The record shows that the treasurer instituted the present action against the bank to recover from it the funds in its hands belonging to the drainage district before Brown instituted his suit in chancery against the drainage district to recover the amount due him by it, and in which the bank was garnished. Therefore it is claimed that this case is governed by the rule of priority in assuming jurisdiction. One reason given is ⚫that, if the principal debtor should be bound The court specifically recites in the decree by garnishment proceedings subsequently instituted in another court, he would be placed that it found from the answer and crossentirely in the power of his debtor, who complaint of the bank and the testimony in'might, by confessing in his answer in the troduced that the sum of $8,852.25 was due from the Bank of Corning to the drainage garnishment proceedings a smaller indebtdistrict. The court also found that the edness than actually existed, practice fraud upon his creditors. Then, too, a collision drainage district owed Brown a sum in exwould be produced in the jurisdiction of cess of that amount by several thousand courts, which would embarrass the adminis- dollars. The bank was ordered to pay the tration of justice.

It is also pointed out that, if the question of the indebtedness between the principal defendant and the garnishee could be litigated in the subsequent preceedings, the garnishee might be compelled to pay the same debt twice. In support of their position counsel cite Black on Judgments (2d Ed.) vol. 2, § 594, and the decisions of courts of numer

plaintiff said sum of $8,852.25, and it was specifically decreed that, upon the payment of said sum to the plaintiff, the Bank of Corning be discharged from all liabilities on account of every claim of every kind by the drainage district or its treasurer. Here, then, is a direct adjudication of the very matter now at issue. The presumption is, in the absence of a showing to the contrary,